CRIMINAL APPEAL NO 679 OF 2020 JOSEPH JUMA KITWAI VS THE REPUBLI

IN THE COURT OF APPEAL OF TANZANIA AT MQSHI f CO RAM: WAMBALI. J.A.. KITUSI, 3.A. And NGWEMBE, 3.A.) CRIMINAL APPEAL NO. 679 OF 2020 JOSEPH JUMA KITWAI..................................................................APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Moshi with Extended Jurisdiction at Moshi) (Kinawelk SRM Ext. Jur.1 ) dated the 19th day of October, 2020 in Ext. Jur. Criminal Appeal No. 26 of 2020 JUDGEMENT OF THE COURT 7th May & 16th July, 2024 NGWEMBE, JA.: The appellant, Joseph Juma .Kitwai appeared before the District Court of Rombo at Rombo where he was charged with the offence of armed robbery contrary to section 287A5of the Penal Code, Cap. 16 (the Penal Code). The particulars laid in the charge was to the effect that on 25th day of September, 2018 at about 20: 30 hours at Mbomai Village within Rombo District in Kilimanjaro Region, the appellant while armed with a bush knife (Panga) committed armed robbery whereby he robbed cash money TZS. 100,000.00, the property of Jenifer Severine Mushi. It is on the record that the appellant denied the allegation that was laid in the charge. The prosecution therefore paraded four witnesses to support the case, Those were: WP 6700 Elizabeth (PW1) who was an investigator of the offence; Jenipha Severine Mushi (PW2), the victim; Felix Kimaro (PW3), a watchman at Tarakea Mission; and John Gaston (PW4). In his defence, the appellant consistently denied to have committed the offence of armed robbery. The substance of the prosecution evidence was to the effect that, on 25th September, 2018 at around 20:00 hours PW2 closed her shop located at Tarakea Mission. On her way to her home, she met with the appellant and another person who is at large. The two, threatened her with a machete with a view to rob her belongings. However, she resisted the threat and held the appellant intact while screaming for help and that his colleague ran away. Following her alarm, two watchmen, that is, PW3 and PW4 came to the scene of crime where they found the appellant and upon arresting him, they jointly took him to Tarakea Police Station. PW3 and PW4 testified on how they responded to the alarm raised by PW2 on the material date and 2 as a result they arrested the appellant, tied him with rope and together with PW2 took the appellant to Tarakea Police Station. The investigator (PW1) testified that, three persons sent the appellant to Tarakea Police Station on material date on allegation that he had committed armed robbery by using a machete with wooden handle and robbed the properties of PW2. PW1 thus kept the said bush knife in the exhibit room and at the trial it was tendered in court and admitted as exhibit PI. As alluded to above, the appellant categorically denied the commission of the offence. He stated that on the alleged date at 18 hours, he was at Mailisita area going to Tarakea. On the way, he came into contact with three people who arrested and took him to Tarakea Police Station. He stated further that, he was put under custody until 31st October, 2018 when he was arraigned in court to answer the charge of armed robbery. He denied to have been arrested with a bush knife at the scene of crime. Also, he challenged the evidence of PW3 and PW4 for being incredible and therefore not reliable. Moreover, the appellant denied to have been properly identified at the scene of crime. Further, he contended that the victim was unknown to him and thus wondered how she would have alleged that he robbed her 3 belonging while she did not substantiate her story. On cross examination, he testified that on the material date he could not remember where he was, though when he was asked by the trial court, he admitted that at around 20:30 hours of that date he was at Tarakea Police Station. Nevertheless, at the end of the trial, having considered the evidence for both sides, the trial District Court of Rombo was fully convinced that the prosecution had proved its case beyond reasonable doubt. It therefore convicted the appellant and imposed a sentence of thirty years imprisonment. The appellant's desire to upset the decision of the trial court prompted him to lodge an appeal to the High Court which was transferred to the Court of the Resident Magistrate with Extended Jurisdiction at Moshi. He was partly successful with regard to the finding of guilty and conviction on the charge of armed robbery. Notably, the learned Senior Resident Magistrate with Extended Jurisdiction substituted it for an attempted armed robbery though purportedly contrary to section 287 instead of section 287B of the Penal Code, and maintained the sentence of thirty-years imprisonment. Still discontented, the appellant lodged an appeal to this Court. In this second appeal, the appellant's grievances are expressed in three memoranda of appeal comprising a total of fourteen (14) grounds of appeal. However, at the hearing of the appeal, it was agreed by both parties and the Court that basically, the main complaints for determination can conveniently be compressed into five grounds of appeal as follows: first, failure to consider the variances between the charge and the evidence on the record in entering conviction; second, improper identification of the appellant at the scene of crime; third, failure by the trial court to comply with section 231 of the CPA; fourth, failure by the two courts below to consider the defence of the appellant; and fifth, failure to prove the prosecution case to the required standard. At the hearing of the appeal before us, the appellant was initially represented by Mr. Engelberth Boniphace, learned advocate, who prior to commencement of hearing, upon agreement with the appellant withdrew his legal services. Thus, the appellant proceeded with the hearing of the appeal unrepresented. On the other side, the respondent Republic was represented by Ms. Grace Madikenya and Mr. Philbert Mashurano, leaned State Attorneys. When the appellant was invited to elaborate on the thrust of his complaints in the memorandum of appeal, he adopted the grounds of appeal summarized above and invited the Court to consider them in determining the appeal. He added briefly that, there are apparent variances on the date of the alleged offence stated in the charge and the evidence. He explained that, while the charge indicates that the offence of armed robbery occurred on 25th September, 2018 at 20:30 hours, the evidence of one of the prosecution witnesses (PW1) alleged that the said offence was committed on 26th September, 2018. He insisted that even the amount of money which was alleged to have been robbed at the scene of crime varied between the charge and the evidence. Thus, he prayed that those variances should be decided in his favour. Responding on the first ground, Mr. Mashurano submitted that the variance on the date of commission of the offence is minor and did not go to the root of the case. He amplified that the charge disclosed properly that the event of armed robbery occurred on 25th September, 2018 at about 20:30 hours and was supported by the evidence of PW2 and was corroborated by PW3. He added that, even the defence case supported the prosecution evidence as the appellant testified that he was arrested and taken to Tarakea Police Station on 25th September, 2018. Therefore, he 6 urged the Court to treat the variance between the evidence of PW1 and the charge as minor because the rest of the prosecution witnesses confirmed that it was on 25th September, 2018. He supported his submission with the case of Director of Public Prosecutions Vs Daniel Wasonga (Criminal Appeal No. 64 of 2018) [2022] TZCA 418 (12 July 2022, TANZLII). It is settled that substantial variance between the charge and the evidence is material and capable of making the charge unproved. For this stance, see for instance, the decisions of the Court in Ntobangi Kelya & Another Vs R (Criminal Appeal 256 of 2017) [2021] TZCA 393 (23 August 2021, TANZLII) and Said Musa Soweni Vs R (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (22 April 2022, TANZLII). Particularly, in the latter case it was held that: "The law is settled that, a charge which is in material conflict with the witnesses' testimonies materially shakes credence o f the prosecution case and renders the prosecution case not proved to the required standard." It is also acknowledged that, minor variance which do not affect the substance of the case may be disregarded. In this particular case, the charge indicates categorically that, the offence of armed robbery was 7 committed on 25th September, 2018 at 20: 30 hours. We entirely agree with Mr. Mashurano that the said date was amply supported by the evidence of the victim (PW2), PW3 and the appellant (DW1). Therefore, the variance of date reflected in the testimony by PW1 that the event occurred on 26th September, 2018 and PW4 who stated that the offence occurred on 28 September, 2018 can be ignored. This is so because the appellant confirmed that on 25th September, 2018, he was at Tarakea Police Station after he was arrested by three persons though he alleged that it was at around 18:00 hours. We therefore, go along with Mr. Mashurano that the variances between the charge and evidence of some prosecution witnesses are minor which did not affect the substance of the case. Accordingly, we dismiss the first ground. With regard to the second ground of appeal, the appellant contended that his identification at the scene of crime was not watertight. He contended that both, the trial and the first appellate courts did not appreciate that as it was during the night, the unfavourable condition at the scene of crime hindered proper identification by PW2, PW3 and PW4. In this regard, he implored the Court to find that there was improper identification and allow the second ground of appeal. In response, Mr. Mashurano contested the appellant's contention and argued that he was properly identified as he was arrested at the scene of crime by PW2, PW3 and PW4 who later sent him to Tarakea Police Station where he was put under custody on the same day, that is 25th September, 2018. He added that, in the circumstances there was no need of further description of the appellant. He supported his submission by the case of Suleiman Dago @ Swalehe Vs R (Criminal Appeal No. 59 of 2022) [2024] TZCA 280 (29 April 2024, TANZLII) and urged the Court to dismiss the second ground of appeal forthwith. Having heard the parties, it is our considered view that according to the evidence on the record of appeal, there is no dispute that the appellant was arrested and tied his hands at the scene of crime before he was sent to Tarakea Police Station on the same day. For clarity, PW2 testified that: 7 decided to hold him and scream for hefp at that time ai! my stuffs were down as he ordered. There came John and Felix where they helped me and we took the accused to police station." Moreover, PW3 testified that: "I heard the screams mwizi mwizi I made follow up and found a young man with a bush knife holding... I found Peter an employee o f the Mission who came for help too... I and Peter held the accused on dock, we tied his hands and took him to a vehicle and brought him to police station. He was with his bush knife/' It is evident from the reproduced part of the evidence that PW2 who initially apprehended the appellant at the scene of crime was amply assisted by PW3 and PW4 and later sent him to Tarakea Police Station. We are settled that identification of the appellant at the scene of crime could not be among the issues to be contested. In the case of Jibril Okash Ahmed Vs R (Criminal Appeal No. 331 of 2017) [2021] TZCA 13 (11 February 2021, TANZLII) the Court encountered an akin scenario and held that: "Where an accused person is chased from the scene o f crime even in difficult conditions such as night without losing sight o f him and is successfully arrested, that constitutes sufficient evidence that he is responsible for the commission o f the offence." In the case at hand, the appellant did not even manage to escape from the scene of crime but was arrested on the spot, his hands tied up and 10 immediately sent to Tarakea Police Station. In the circumstances, he cannot be heard to complain that he was not properly identified. We thus dismiss the second ground forthwith. The third ground of appeal is in relation to the failure of the trial court to comply with the provision of section 231 (1) of the Criminal Procedure Act (CPA). The main complaint of the appellant is on failure of the trial court to address him on his rights after being found to have a case to answer. In his submission, the omission vitiated the trial as he was not properly heard and given the right prescribed by the law. In response, Mr. Mashurano briefly submitted that the trial court complied with the said section because as reflected at page 7 of the record of appeal, though the trial magistrate did not show clearly that she addressed him in terms of that section, the response of the appellant shows that he was duly informed of the rights provided therein. In the event, he pressed the Court to dismiss the ground for lack of merits. For clarity, we wish to reproduce section 231 (1) of the CPA hereunder: "231 - (1) At the dose o f the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to ii the offence with which he is charged or in reiation to any other offence o f which, under the provisions o f sections 300 to 309 o f this Act, he is iiabie to be convicted, the court shaii again expiain the substance o f the charge to the accused person and inform him o f his right: (a) To give evidence whether or not on oath or affirmation, on his own behaif; and (b) To caii witness in his defence, and shaii then ask the accused person or his advocate if it is intended to exercise any o f the above rights and shaii record the answer; and the court shaii then caii on the accused person to enter on his defence save where the accused person does not wish to exercise any o f those rights." There is no dispute that the section is couched in a mandatoryterm. Indeed, its importance has been emphasized in several decisions of the Court including, Alex John Vs. R, Criminal Appeal No. 129 of 2006 (unreported); Ndamashule Ndoshi Vs. R [2007] T.L.R. 70; and Juma Limbu @ Tembo Vs. R (Criminal Appeal No. 168 of 2006) [2010] TZCA 79 (6 October 2010, TANZLII). However, in respect to this appeal, upon perusing the record of appeal, it is clear as stated by Mr. Mashurano that, though the trial magistrate did 12 not record specifically to have so informed the appellant of the rights provided under section 231 (1) of the CPA, the response of the appellant after he was found with a case to answer shows that he was exposed to the requirement of that provision. In this regard, the proceedings dated 3rd April, 2019, depicts the following: "Court: Ruling delivered today 3/4/2019 before prosecution and defence side. Name and signature Accused reply - 1 will defend my case on oath and I will have no witnesses Order: Defence hearing on 17/4/2019. Accused further remanded in custody." The implication of the appellant's answer indicates clearly that he was given his rights to express the kind of defend he intended to offer as recorded on the above quoted excerpt. We are therefore satisfied that section 231 (1) of CPA was complied with. Hence, the third ground lacks merits and we dismiss it. Regarding the fourth ground on failure by the trial and first appellate courts to consider the appellant's defence, the learned State Attorney conceded to the complaint having regard to the record of appeal. However, he argued that, even if the said defence is considered by this Court, it will be found that it was too general and basically it supported the prosecution case. In the circumstances, he beseeched the Court to dismiss this ground as well. Admittedly, as conceded by the learned State Attorney, the two courts below did not consider the defence case. Having perused the record of appeal, it is apparent that in his defence the appellant denied generally on the commission of the offence. Besides, he admitted to have been arrested on 25th September, 2018 and that he remained in custody at Tarakea Police Station until he was arraigned in court on 31st October, 2018. In essence, the defence of the appellant enhanced the prosecution case, considering the evidence of PW2, PW3 and PW4 regarding his arrest at the scene of crime. We are therefore satisfied that though both the trial and first appellate courts did not consider the appellant's defence, the respective defence posed no doubt to the prosecution case on his involvement in committing the offence. Accordingly, we find the fourth ground unmerited and dismiss it. Finally, in the fifth ground, the appellant emphasized that the prosecution failed to prove the offence of attempted armed robbery as substituted by the first appellate court because the chain of custody of the 14 bush knife (exhibit PI) was not established and that the alleged stolen money T2S. 100,000.00 was not substantiated by witnesses. It is noteworthy that initially, the counsel for the respondent Republic (Ms. Madikenya) had strongly supported the first appellate court's finding and conviction on the offence of attempted armed robbery. However, later she retreated and argued that, according to the evidence on record, what was proved was the offence of attempted robbery under section 287 of the Penal Code. The reasons were that the chain of custody of exhibit PI was broken because no foundation was laid on how it was handled after the arrest until it was tendered in court and that the alleged stolen money was not substantiated by the prosecution witnesses, including PW2 as stated by the appellant. She was therefore of the view that since the evidence of PW2, PW3 and PW4 established that the appellant invaded the victim with intention of robbing her properties, the conviction should have been grounded on attempted robbery. She added that even at the first appellate court, though the senior Resident Magistrate with Extended Jurisdiction indicated that, the appellant was guilty of attempted armed robbery and not armed robbery as found by the trial court, he substituted it to attempted robbery and convicted him 15 under section 287 of the Penal Code instead of section 287B of the same Act concerning attempted armed robbery. Therefore, she submitted, in terms of section 301 of the CPA, the Court should substitute the offence to attempted robbery and sentence the appellant in accordance with that section instead of thirty years imprisonment which was maintained by the first appellate court. On our part, there is no doubt that this second appeal is against the findings and sentence of the first appellate court, which upset conviction of the appellant on the offence of armed robbery and substituted it with attempted armed robbery, though reference was made to section 287 of the Penal Code and maintained the same sentence. Having gone through the evidence on the record, we are satisfied that as found by the first appellate court what the prosecution proved is attempted robbery and not attempted armed robbery. In the circumstances, we hold that though the prosecution did not prove the offence of armed robbery laid in the charge, it proved the offence of attempted robbery. In the result, the complaint of the appellant in the fifth ground of appeal is dismissed. In the event, from the foregoing, we quash the appellant's conviction on attempted armed robbery and set aside the sentence of thirty years 16 imprisonment and substitute thereof with the conviction of attempted robbery contrary to section 287 of the Penal Code and sentence him to seven years imprisonment commencing from the date he was initially convicted and sentenced by the trial court. In the end, save for substitution of conviction and sentence, we dismiss the appeal. DATED at DAR ES SALAAM this 31st day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 16th day of August, 2024 in the presence of the appellant in person and Ms. Bertina Tarimo, learned State Attorney for the Respondent/ Republic; via video link at High Court Moshi, is hereby certified as a true copy of the original. 17